Questioning
legality of judgment rendered by a Division Bench of the Punjab and Haryana High Court, Criminal
Appeal No. 1721 of 1996 has been filed by the State of Haryana. The other two appeals are by the
informant. An innocent child of about 4 years was the victim of unnatural
death. According to the prosecution, respondents caused his homicidal death
after kidnapping him. The motive for the killing was stated to be intended
demand of ransom for his release. The Sessions Judge, Bhiwani found the
respondent-accused Jagbir Singh to be guilty of offences punishable under
Section 302 IPC. He was also convicted for offence punishable under Sections
364, 201 and 384 of the Indian Penal Code, 1860 (in short the 'IPC'). For the
offence punishable under Section 302 IPC he was awarded death sentence and for
other offences period of sentence already undergone in custody. Accused Umed
Singh was convicted for offences punishable under Section 201 IPC and was
directed to suffer RI for 3 years and fine. Both the accused persons preferred
appeal before the High Court. The High Court by the impugned judgment found
them not guilty.

According
to the prosecution, death of the victim was on 6.9.1991 and passing through a
chain of incidents and happenings, finally the First Information Report was
lodged on 9.9.1991. In between, a ransom letter meant for somebody else was
found in torn condition and that led to suspicion against the
accused-respondents. Accused-Jagbir is related to Daya Nand (PW7), a teacher.
It appears that on account of several circumstances, the villagers thought that
accused-Jagbir was responsible for disappearance of the child. He was given
time to produce the child. A ransom note was found to be in the hand writing of
accused-Jagbir and he is stated to have pointed out the place where the dead
body was buried in his house and also on the basis of his information certain
articles were recovered. It was also the version of PW7 that at a point of
time, accused-Jagbir was taken to the police with the material indicating his
complicity in the alleged incident. But the police did not arrest him and left
him off. It was pointed out there was grave doubt about the manner in which the
investigation was being conducted, and alleged inaction of police. On completion
of investigation charge sheet was placed and accused faced trial. The case
before the Trial Court was based on circumstantial evidence. The circumstances
which according to the prosecution established guilt of the accused are as
follows:

(1) The
ransom notes were in the handwriting of the accused- Jagbir Singh;

(2)
There was extra-judicial confession before PW-10 and;

(3)
Recovery of dead body on the basis of information given by the accused while in
custody in terms of Section 27 of the Evidence Act, 1872 (for short 'the
Evidence Act').

The
Trial Court found the above circumstances sufficient for establishing guilt of
the accused persons for the offences alleged. In appeal, the High Court upset
the findings and held the accused persons not guilty.

In
support of the appeals, learned counsel for the State and the informant
submitted that the High Court's approach was erroneous. It failed to notice
that the police was adopting a partisan role and the evidence of witnesses
brought on record was in a particular line. The investigation was done
otherwise and the police did not place adequate material before the Court. It
was pointed out that the ransom note has been erroneously discarded by the High
Court. It should have noticed that the accused-Jagbir accepted the handwriting
to be his and, therefore, the handwriting expert's report was available to be
used against the accused; particularly when the handwriting was given
voluntarily for comparison. Further the extra judicial confession before PW-10 has
been discarded without any reasonable basis. Finally, when the dead body was
recovered from the house of the accused on the basis of the information given
while in custody, the High Court should have relied upon the same.

There
was no appearance for the respondents-accused when the matter was taken up for
hearing, though the respondents had appeared through their counsel, and the
cause list indicated name of the counsel.

It is
unfortunate that an innocent child has lost his life but the crucial question
is whether the accused persons were responsible for his death and the
prosecution was able to prove its claims beyond reasonable doubt. As stated
earlier the case rests on circumstantial evidence.

It has
been consistently laid down by this Court that where a case rests squarely on
circumstantial evidence, the inference of guilt can be justified only when all
the incriminating facts and circumstances are found to be incompatible with the
innocence of the accused or the guilt of any other person. (See Hukam Singh v.
State of Rajasthan AIR (1977 SC 1063); Eradu and Ors.
v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v.
State of Karnataka (AIR 1983 SC 446); State of U.P. v.
Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee
v. State of M.P. (AIR 1989 SC 1890). The
circumstances from which an inference as to the guilt of the accused is drawn
have to be proved beyond reasonable doubt and have to be shown to be closely
connected with the principal fact sought to be inferred from those
circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon
the conclusion drawn from circumstances the cumulative effect of the
circumstances must be such as to negative the innocence of the accused and
bring the offences home beyond any reasonable doubt.

We may
also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v.
State of A.P. (1996) 10 SCC 193, wherein it has
been observed thus:

"In
a case based on circumstantial evidence, the settled law is that the
circumstances from which the conclusion of guilt is drawn should be fully
proved and such circumstances must be conclusive in nature. Moreover, all the
circumstances should be complete and there should be no gap left in the chain
of evidence. Further the proved circumstances must be consistent only with the
hypothesis of the guilt of the accused and totally inconsistent with his
innocence....".

In Padala
Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was
laid down that when a case rests upon circumstantial evidence, such evidence
must satisfy the following tests:

"(1)
the circumstances from which an inference of guilt is sought to be drawn, must
be cogently and firmly established;

(2) those
circumstances should be of a definite tendency unerringly pointing towards
guilt of the accused;

(3)
the circumstances, taken cumulatively should form a chain so complete that
there is no escape from the conclusion that within all human probability the
crime was committed by the accused and none else; and

(4) the
circumstantial evidence in order to sustain conviction must be complete and
incapable of explanation of any other hypothesis than that of the guilt of the
accused and such evidence should not only be consistent with the guilt of the
accused but should be inconsistent with his innocence.

In
State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out
that great care must be taken in evaluating circumstantial evidence and if the
evidence relied on is reasonably capable of two inferences, the one in favour
of the accused must be accepted. It was also pointed out that the circumstances
relied upon must be found to have been fully established and the cumulative
effect of all the facts so established must be consistent only with the
hypothesis of guilt.

Sir
Alfred Wills in his admirable book "Wills' Circumstantial Evidence"
(Chapter VI) lays down the following rules specially to be observed in the case
of circumstantial evidence:

(1) the
facts alleged as the basis of any legal inference must be clearly proved and
beyond reasonable doubt connected with the factum probandum;

(2) the
burden of proof is always on the party who asserts the existence of any fact, which
infers legal accountability;

(3) in
all cases, whether of direct or circumstantial evidence the best evidence must
be adduced which the nature of the case admits;

(4) in
order to justify the inference of guilt, the inculpatory facts must be incompatible
with the innocence of the accused and incapable of explanation, upon any other
reasonable hypothesis than that of his guilt,

(5) if
there be any reasonable doubt of the guilt of the accused, he is entitled as of
right to be acquitted".

There
is no doubt that conviction can be based solely on circumstantial evidence but
it should be tested by the touch-stone of law relating to circumstantial
evidence laid down by the this Court as far back as in 1952.

In Hanumant
Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:

"It
is well to remember that in cases where the evidence is of a circumstantial
nature, the circumstances from which the conclusion of guilt is to be drawn
should be in the first instance be fully established and all the facts so
established should be consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a conclusive nature and tendency
and they should be such as to exclude every hypothesis but the one proposed to
be proved. In other words, there must be a chain of evidence so far complete as
not to leave any reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to show that within all human probability
the act must have been done by the accused." A reference may be made to a
later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while
dealing with circumstantial evidence, it has been held that onus was on the
prosecution to prove that the chain is complete and the infirmity of lacuna in
prosecution cannot be cured by false defence or plea. The conditions precedent
in the words of this Court, before conviction could be based on circumstantial
evidence, must be fully established. They are:

(1) the
circumstances from which the conclusion of guilt is to be drawn should be fully
established. The circumstances concerned 'must' or 'should' and not 'may be'
established;

(2) the
facts so established should be consistent only with the hypothesis of the guilt
of the accused, that is to say, they should not be explainable on any other
hypothesis except that the accused is guilty;

(3) the
circumstances should be of a conclusive nature and tendency;

(4) they
should exclude every possible hypothesis except the one to be proved; and

(5) there
must be a chain of evidence so complete as not to leave any reasonable ground
for the conclusion consistent with the innocence of the accused and must show
that in all human probability the act must have been done by the accused.

These
aspects were recently highlighted in State of Rajasthan v. Rajaram (2003 AIR SCW 4097) We shall examine the
circumstances highlighted. So far as ransom notes are concerned, prosecution
sought to rely upon the report given by the handwriting expert. It appears that
the accused was taken before Addl. Chief Judicial Magistrate, Bhiwani.
According to him, on 10.9.1991 the accused was brought before him in custody
for giving his specimen signature under Section 73 of the Evidence Act. It was
noticed by this Court in State of Uttar Pradesh v. Ram Babu Misra AIR 1980 SC
791) that the Chief Judicial Magistrate has no power to direct the accused to
give his specimen signature for comparison during investigation. Section 73 of
the Evidence Act reads as follows:

"Section
73- Comparison of signature, writing or seal with others admitted or proved: In
order to ascertain whether a signature, writing, or seal is that of the person
by whom it purports to have been written or made, any signature, writing, or
seal admitted or proved to the satisfaction of the Court to have been written
or made by that person may be compared with the one which is to be proved,
although that signature, writing, or seal has not been produced or proved for
any other purpose.

The
Court may direct any person present in court to write any words or figures for
the purpose of enabling the Court to compare the words or figures so written
with any words or figures alleged to have been written by such person.

This
section also applies, with any necessary modifications, to
finger-impressions".

The
second paragraph of Section 73 enables the Court to direct any person present
in the Court to give specimen writings 'for the purpose of enabling the Court
to compare' such writings with writings alleged to have been written by such
person. The clear implication of the words 'for the purpose of enabling the
Court to compare' is that there is some proceeding before the Court in which or
as a consequence of which it might be necessary for the Court to compare such
writings. The direction is to be given for the purpose of enabling the Court to
compare and not for the purpose of enabling the investigating or other agency
'to compare'. If the case is still under investigation there is no present
proceeding before the Court in which or as a consequence of which it might be
necessary to compare the writings. The language of Section 73 does not permit a
court to give a direction to the accused to give specimen writings for
anticipated necessity for comparison in a proceeding which may later be
instituted in the Court.

In
order to enable exercise of power under Section 73, the pendency of a
proceeding before the Court is the sine qua non.

Therefore,
the comparison of the signature on the alleged ransom note in no way helps the
prosecution.

Great
emphasis was laid by learned counsel for the State on the evidence of PW-4, the
Addl. CJM that accused had admitted that the signature was his. This statement
is of no assistance. The witness has admitted that the statement was made
before him by the accused in the presence of police officials. The second
circumstance is the alleged extra judicial confession before PW-10. The High
Court has analysed the evidence in great detail. It is on record that the
accused-Jagbir was being taken to various places and at different points of
time he was being pressurized to make statement. Though the accused was claimed
to have made the statement in the presence of large number of persons, a
combined reading of the evidence shows that nobody else speaks about the
so-called extra judicial confession, not even those who have been examined as PWs.
Though PW10 said that there were many persons who had heard it, no other person
has stated about it. The statement of PWs 7 and 10 goes to show that accused
was being interrogated by PWs and other villagers as well as his father and
other relatives. Interrogation continued for about 3 days when allegedly Jagbir
confessed his guilt.

Though
the First Information Report was lodged by PW7 after knowing about the extra
judicial confession, there is no mention about this vital fact. In a given
circumstance, omission to mention about the particular aspect may not render
prosecution version suspicious. But when circumstances in the present case are
taken in the entirety alleged extra judicial confession is not believable. In
order to make an extra judicial confession a reliable evidence it has to be
shown that the same was voluntary. The factual scenario as presented by the
prosecution goes to show that the alleged extra judicial confession cannot be
termed to be voluntary even if it was said to have been made, as claimed. The
High Court was right in discarding the alleged extra judicial confession.

What
remains now to be seen is whether the recovery of the dead body from the
premises of accused establishes prosecution version.

According
to the prosecution when the Panchayat gave time to the accused to produce the
boy alive or dead, he accepted that the dead body was buried in his compound.
The accused dug the land and on seeing leg of the dead body they stopped
digging and went to the police. The High Court has found that prosecution
claimed that the two accused were arrested by the Sub Inspector Mahender Singh Bhatti
(PW 12) on 9.9.1995 on the culvert of Jai Canal about 8.00 p.m. in the presence
of one Chatter Singh and Om Parkash. However, Om Parkash (PW 10) has denied
about the arrest of the accused by PW12 near canal. From the statement of PW12,
it appears that the accused persons after their arrest made disclosure of the
statement about ransom, concealment of the dead body and that the dead body
recovered in the presence of aforesaid Chatter Singh and Om Parkash (PW10). It
is belied by the statement of Om Parkash (PW10). According to this witness,
when the accused made a voluntary statement in the presence of many others he
pointed out where the body was buried. They went to the police station where
they met PW12 and told him about finding the dead body. PW10 told him that dead
body was to be handed over to Sr. S.P. or the Dy. S.P. Evidence of PW10 further
shows that PW.12 accompanied by another ASI and other police officials went to
the village. There many people had assembled and as the villagers started shouting
and agitating that led to altercation; both the accused were arrested by the Dy.S.P.
Thereafter it is stated that the accused- Jagbir made a disclosure statement,
where he (PW10) and Chatter Singh were stated to be eyewitnesses. One thing is
clear that there are unexplained contradictions about the place where the
accused were arrested and manner of recovery. Since the dead body was recovered
on the basis of information already known, Section 27 of the Evidence Act has
no application. As observed by this Court in Aher Raja Khima v.

State
of Saurashtra (AIR 1956 SC 217), if a recovery of the incriminating articles
alleged to have been made by the accused while in custody is inadmissible in
evidence if the police already known where they were hidden. That takes the
case out the purview of Section 27 of the Evidence Act.

However,
if a witness can be believed that in his presence the accused person gave
recovery of something (of course while not in police custody) it may be a
suspicious circumstance, de hors Section 27 of the Evidence Act. But, as noted
above, the High Court has analysed the evidence in the present case in great
detail to find the evidence to be contradictory and unacceptable in relation to
extra judicial confession and alleged recovery. That being so, the High Court's
conclusion cannot be faulted.

Looked
from any angle the judgment of the High Court does not suffer from any
infirmity which warrants interference.

It is
true that an innocent child has lost his life and there may be some truth about
deficiency in the evidence collection mode. But the court can act on the
evidence brought before it. Even though the investigation may not be entirely blemishless,
at the same time when the material brought on record is insufficient, the
course adopted by the High Court cannot be faulted. It does not appear that
before the Trial Court or the High Court any grievance was made regarding
remiss in investigation or not making investigation in the right direction.